3 out of 5 judges give divergent opinions on short order

Sixty-nine judges, who were hit by the short order of the five-member bench, will now heave a sigh of relief after the detailed judgement as three judges of the Supreme Court have given divergent opinions on the short order.

A five-member bench of SC headed by Justice Anwar Zaheer Jamali and comprising Justice Mian Saqib Nisar, Justice Ejaz Afzal Khan, Justice Muhammad Ather Saeed and Justice Iqbal Hameedur Rahman on April 11, 2013 through short order had set aside the earlier judgement of three-member bench declaring that the judges of the superior courts who were in receipt of pension despite having rendered less than five years service, would not be entitled to receive pension.

The short order said, "We hereby, in exercise of all the enabling powers vested in this court, hold and declare that the law enunciated in the case of Accountant General Sindh and others versus Ahmed Ali U Qureshi and others (PLD 2008 SC 522) is per incuriam and consequently this judgement is set aside. The titled appeal is accepted and the judgement impugned therein is also set aside. Other miscellaneous applications moved therein and in these proceedings are dismissed accordingly."

In the detailed judgement, three judges of the bench namely Justice Mian Saqib Nisar, Justice Athar Saeed and Justice Iqbal Hameedur Rehman gave dissenting notes, opposed the retrospective effect of the judgement. If the judgement is given retrospective then Rs 1,647,130,156 had to be recovered from 69 judges of the high court. Of the total amount Rs 858,135,924 from 36 judges of LHC, Rs 397,542,434 from 17 judges of Peshawar High Court, Rs 46,166,468 from two judges of Balochistan High Court and Rs 345,285,380 from 14 judges of Sindh High Court.

Justice Mian Saqib Nisar, in his note, observed: "It is nobody's case that they have practiced and played any fraud or committed some foul in gaining and procuring the pension, so as to disentitle them to retain such gain, on the known principle, that no one should be allowed to hold the premium of his wrong/fraud and/or retain ill gotten gains. Rather to the contrary they have received the monies under the judicial dispensation by the apex court, which was considered as valid enunciation of law, till the present decision and the pension was paid and received by them in bona fide belief of the entitlement; none of the concerned, ever pointed out the depravity and the vice of "the judgement", though "the judgement" was known at all the levels of the High Court(s) and also in other judicial circles, rather it was a publicly known fact, yet the verdict was left outstanding for a considerably long period, thereby allowing the Judges to derive benefit of "the judgement."

He stated on account of the lapse of considerable time, most of the judges might have spent and consumed the amount received by them, as they are expected to have decent living after their retirement; the amount so received might have expended on the education and marriages of their children; the possibility that they might have acquired an abode to spend rest of their life to avoid dependency on their scion cannot be ruled out.

"I am not sure they have the ability and capacity, at such an advance age to generate the requisite amount for the refund. Enforcing the refund of the amount upon them may cause innumerable predicament for them and may lead to a very pathetic and a ludicrous situation for them."

Likewise, Justice Athar Saeed and Justice Iqbal Hameedur Rehman have also opposed the short order regarding the recovery of pensionary benefits availed by 69 retired judges of high courts in the past.

On the other hand, Justice Anawar Zaheer Jamali who has authored the main judgement has cited the dual nationality case, wherein declaration was issued against number of elected MNAs, MPAs and senators for their disqualification from being members of Majlis-e-Shoora (Parliament), provincial assemblies and the Senate, because of holding dual nationalities.

He said, "The court looking to the peculiar facts and circumstances emerging from the judgement under challenge, shall take a lenient view of the matter so as to protect the benefit of the judgement under challenge already availed by some retired high court judges has absolutely no legal or moral force. As a matter of fact, all retired judges of the high court, who had less than minimum five years actual service to their credit as such and beneficiary of judgement under challenge, are legally and morally bound to restore all such gains to the public exchequer so as to set an example for the society about their high morals and conduct, which is expected from all those who are supposedly role model for the society."